2024 (October Term)
United States v. Thomas, 86 M.J. 15 (the privilege to strike individual jurors through peremptory challenge is subject to the commands of the Equal Protection Clause, which forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the prosecution's case against a black defendant).
(Batson (Batson v. Kentucky, 476 US 79 (1986)) established the following three-part test to determine whether the government's exercise of a peremptory challenge violates the prohibition on racial discrimination in the jury selection process: (1) the accused must make a prima facie showing of purposeful discrimination, (2) once the accused has made this showing, the burden shifts to the government to come forward with a race-neutral explanation for the challenge, and (3) if the government provides a facially neutral explanation, the trial judge must determine whether the prosecutor's stated reasons were the actual reasons or instead were a pretext for discrimination).
(the Batson right to equal protection is a part of due process under the Fifth Amendment; and so, it applies to courts-martial, just as it does to civilian juries).
(in light of the structural differences between courts-martial and civilian trials, the CAAF has articulated a modified version of Batson applicable to courts-martial; this modified standard replaces the first step of the Batson analysis with a per se rule: upon timely objection to a peremptory challenge, a prima facie case of discrimination is established; once an accused has made a prima facie case of discrimination, the modified standard places a heightened burden on the government to satisfy the second step of the Batson analysis by providing not only a race-neutral explanation, but one that is not unreasonable, implausible, or that otherwise makes no sense; finally, if the government offers a facially neutral basis for the strike, the burden shifts to the accused to prove purposeful discrimination; then, the military judge must determine whether the asserted justification is merely a pretext for intentional race-based discrimination).
(a race-neutral reason is an explanation based on something other than the race of the court member).
(in a dispute over a peremptory challenge, if there is a factual dispute about a court member's demeanor, a military judge normally can and should resolve this dispute about the factual basis for the challenge).
(in a dispute over a peremptory challenge, in the absence of any factual disagreement as to the court member's body language or demeanor, a trial counsel's interpretation of the challenged member's demeanor will be accepted as credible).
(in a dispute over a peremptory challenge, a military judge must determine whether a trial counsel's proffered explanation is credible or merely a pretext for intentional racial discrimination).
(in a dispute over a peremptory challenge, a military judge's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort that is accorded great deference on appeal absent clear error).
(in a dispute over a peremptory challenge, where a military judge's decision on the ultimate question of discriminatory intent is lacking, an appellate court affords the decision less deference).
(a military judge ruling on a Batson challenge is presumed to know that she must make a finding as to whether a facially neutral peremptory strike masks a discriminatory purpose; applying that presumption, a finding of no purposeful discrimination may be implied by a military judge's ruling granting a peremptory strike even where the military judge failed to state her findings on the record).
(in this case, the military judge did not abuse her discretion by denying the Batson challenge to a prospective mixed race panel member who had identified himself as having been the target of racial epithets; the government stated reason for striking the member was that both his verbal voir dire responses and his attitude minimized his experiences as a victim of racially derogatory language, leading the government to have concerns that he would not take the charged offenses seriously; this was a reasonable, plausible, facially race-neutral reason for striking the member where the government's explanation focused on the member's responses to questions about his experiences, and not on his race; and furthermore, appellant failed to meet his burden of showing that reason was a pretext for racial discrimination; although the military judge failed to provide an express ruling on the question of whether the reason was merely a pretext for intentional race-based discrimination, the military judge implicitly found the government's stated purpose to be genuine and not a pretext for purposeful discrimination).
2019 (October Term)
United States v. Bess, 80 M.J. 1 (under the Equal Protection Clause, peremptory strikes of an African-American from the jury venire may establish a prima facie case of purposeful discrimination, and once that prima facie case is established, the burden shifts to the government to provide a race-neutral explanation for the strike; just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black; the core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were a court to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ race).
(the Constitution prohibits all forms of purposeful racial discrimination in selection of jurors; a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial).
2003
United
States v. Hurn, 58 MJ 199 (Batson v. Kentucky,
476
U.S. 79 (1986), prohibits peremptory challenges based on race; this
Court has
adopted a per se application of Batson, placing the burden on
the
challenging party, upon timely objection, to provide a race-neutral
explanation
for the challenge; the proffered reason for the challenge may not be
one that
is unreasonable, implausible, or that otherwise makes no sense).
(a military judge’s determination that the trial counsel’s
peremptory
challenge was race-neutral is entitled to great deference and will not
be
overturned absent clear error).
(trial counsel's post-trial reason for a peremptory challenge was
accepted
as race-neutral after a military judge determined in a DuBay
hearing
that the only non-Caucasian officer on the panel was challenged to
protect the
quorum and that officer had informed trial counsel that he desired not
to be a
member because of his pressing workload).
2001
(because of the differences between military and civilian tribunals
and the
holding in United States v.
Moore, 28 MJ 366 (CMA 1989), a
trial counsel
may not exercise a peremptory challenge on the basis of a proffered
reason that
is unreasonable, implausible, or that otherwise makes no sense).
(reason proffered in this case, to protect the quorum, does not
satisfy the
purpose of Batson v. Kentucky,
476 U.S. 79 (1986), United
States v.
Moore, 28 MJ 366 (CMA 1989), and United States v. Tulloch,
47 MJ 283
(1997), which is to protect participants in judicial proceedings from
racial
discrimination).
(trial counsel’s asserted reason for a peremptory challenge, to
protect the
quorum, did not overcome the prima facie case of discrimination
because
he failed to explain why he challenged the only non-Caucasian officer
instead
of any of the Caucasian officers).
(Court of Appeals for the Armed forces declines to apply waiver to a
defense
challenge to a peremptory challenge where defense counsel made a timely
objection, the military judge twice interrupted defense counsel, and
military
judge did not give defense counsel an opportunity to disagree with
trial
counsel’s asserted basis for the peremptory challenge).
(permitting trial counsel to offer a different reason for a
peremptory
challenge by means of an ex parte affidavit submitted more than
two-and-a-half years after the fact would undermine the procedures
adopted in
courts-martial to test peremptory challenges; here, the explanation had
not
been tested in an adversarial setting, defense counsel had not had an
opportunity to dispute the explanation, and there had been no factual
determinations by a military judge).
2000
United
States v. Norfleet, 53 MJ 262 (the differences
between
civilian trials and courts-martial practice warrant a different
standard for
assessing the validity of reasons offered in support of a contested
peremptory
challenge: military counsel must articulate a racially or gender
neutral
explanation that is not implausible, or that otherwise makes no sense).
(where counsel offers an explanation
for a peremptory challenge that reveals patently impermissible
discrimination,
purposeful discrimination will not be sheltered under the umbrella of a
separate proper basis for that peremptory challenge).
(trial counsel’s reference to a dispute between a court member and
the legal
office set forth a reasonable, gender-neutral basis for a peremptory
challenge;
this basis was upheld where second articulated basis was not inherently
discriminatory and was not shown to be merely a pretext).
United
States v. Chaney, 53 MJ 383 (neither the
prosecution nor
the defense may engage in purposeful discrimination on the basis of
race or
gender in the exercise of peremptory challenges).
(military justice has a procedure for examining allegations of
purposeful
discrimination in the exercise of peremptory challenges: (1) if
the party
opposing the challenge believes that the other party has exercised a
peremptory
challenge against a member of a cognizable group, the opposing party
must
object and state the basis for the objection; (2) the party
making the
challenge must offer a reason for the challenge that is neutral in
terms of
race or gender, as applicable; and (3) the military judge must review
the
record and weigh the credibility of the counsel making the peremptory
challenge
before the judge makes a factual determination regarding the presence
or
absence of purposeful discrimination in the panel member’s rejection).
(even in fields that are predominately associated with one gender,
the
occupation of a challenged member may provide an acceptable race or
gender
neutral reason for a peremptory challenge if the proffered reason is
not used
as a pretext for an improper race or gender based challenge).
(a military judge must determine whether counsel’s occupation-based
rationale for a preemptory challenge is a pretext by considering
whether the
proffer is unreasonable, implausible, or makes no sense; in making this
determination, the military judge should take into consideration the
party
making the challenge, the facts of the case, and the particular
occupation of
the challenged court member).
(military judge did not err by sustaining peremptory challenge of
only
female member of a court-martial panel where: (1) trial counsel
articulated that challenge was based on member’s occupation as a nurse;
(2)
military judge accepted this explanation as gender-neutral; (3) when
defense
counsel objected claiming the proffered reason was pretextual, the
military
judge noted that, in his experience, it was typical for trial counsel
to
exercise peremptory challenges against members of the medical group;
(4)
defense counsel did not object to military judge’s finding; and (5) the
record
made clear that the military judge granted the peremptory challenge
based upon
his general understanding that trial counsel commonly prefer not to
have
medical personnel serve as members, regardless of their gender).
(not all occupation-based peremptory challenges will pass judicial
scrutiny
without additional articulation to show that the proffered reason is
not a
pretext).
1999
United States v. Gray, 51 MJ 1 (Congress and the President, the constitutionally authorized rulemakers for the military justice system, properly determined to provide the government, as a party, with a peremptory challenge).
(peremptory challenge against member who indicated he would have a very difficult time imposing the death penalty was not unconstitutional in that the member’s indecisiveness would prevent or substantially impair the performance of his duties as a member in accordance with his instructions and his oath).
(even though the military judge did not require trial counsel to articulate a race-neutral reason for a peremptory challenge at the time of the challenge and defense demand for explanation, an unsworn statement tendered the following day and included in the record provided a sufficient race-neutral explanation for the challenge).
(an unsworn statement, tendered
the day after a Batson challenge to a peremptory
challenge and included
in the record, provided a sufficient race-neutral explanation for the
challenge
and complied with all three requirements established by Batson for
evaluating peremptory challenges: (1) trial counsel’s belated
race-neutral
explanation mooted any question of error in the judge’s apparent
determination
that the defense had not made a sufficient showing to require a
government
explanation; (2) the military judge did not preclude trial counsel from
offering an explanation; and (3) the military judge made an implied
ruling
that the explanation was proper when he accepted a memorandum of the
government’s
reason for exercising the peremptory challenge and asked if the defense
had anything else on the matter).